Claimant alleges that he was unlawfully placed in restrictive confinement for
80 days at Clinton Correctional Facility (hereinafter Clinton).

On September 3, 1999, claimant was served with a misbehavior report alleging
that during a pat frisk conducted on September 2 a substance was found in his
possession that tested positive for marihuana. A Tier III hearing (7 NYCRR part
254) was held on September 8 and September 14, with Deputy Superintendent of
Administration Paul Knapp acting as the hearing officer. Claimant's defense to
the charge was premised upon an assertion that he had been framed by correction
officers in retaliation for filing a grievance against a sergeant. Claimant
alleges that errors occurred during the hearing, including that the hearing
officer denied his request for certain witnesses and that the hearing officer
purportedly conducted an independent investigation while the proceeding was
pending.

Following the hearing, claimant was found guilty and received a penalty of 90
days in the special housing unit (hereinafter SHU). Claimant pursued an
administrative appeal, which resulted in the disciplinary disposition being
reversed on November 19, 1999. Claimant had been in SHU for 80 days when the
disposition was reversed and he seeks compensation in the current claim for the
time he was in SHU.

Claimant called the hearing officer, Knapp, as a witness at trial. Knapp
explained that an inmate's request for witnesses can be denied upon the grounds
of relevancy or the safety and security of the facility. Evidence produced at
the trial reflected that claimant's requests were denied because the witnesses
were determined by Knapp to be "not material" or "redundant" (Claimant's Exhibit
2).

Claimant asked Knapp whether he had an off-the-record discussion with Sergeant
LaPier regarding the incident. Knapp acknowledged that he had such a
conversation after the hearing had been adjourned on September 8 and before it
recommenced on September 14. Claimant questioned Knapp regarding the propriety
of a hearing officer speaking with someone off-the-record about a pending
hearing. Knapp responded that he had been requested by claimant at the hearing
to obtain some information and he believed that speaking to Sergeant LaPier fell
within the context of seeking such information for claimant. Knapp added that,
while conducting an independent investigation would not be proper conduct by a
hearing officer, he felt that a hearing officer was permitted to attempt to
obtain additional information when requested to do so by the inmate who was
facing disciplinary charges.

Defendant called Sergeant Mark Reif as a witness. He testified that in
September 1999 he was a correction officer at Clinton. On September 2, 1999, he
found a "green, leafy substance"[1]

on claimant while conducting a frisk on him. Reif stated that he "took control"
of the substance and that it later tested positive for marihuana. Reif denied
that he planted the substance on claimant.

An inmate who is allegedly unlawfully removed from a prison's general
population and placed in punitive segregation such as SHU or keeplock may have a
cause of action for monetary damages (

see, e.g., Wilkinson v Skinner, 34 NY2d 53). The development of such a
cause of action has roots in due process considerations (see, Wilkinson v
Skinner, supra; Edmonson v State of New York, 132 Misc 2d 452, 455; see
also, Arteaga v State of New York, 72 NY2d 212,
221).[2] Absolute immunity from claims for
monetary damages attaches, however, to disciplinary proceedings conducted
consistent with the procedures provided in the relevant rules of the Department
of Correctional Services, even if the underlying disciplinary charges are later
reversed administratively or via a successful proceeding pursuant to CPLR
article 78 (Arteaga v State of New York, supra; Davis v State of New
York, 262 AD2d 887, lv denied 93 NY2d 819).

While complying with the relevant rules provides defendant with absolute
immunity, failing to follow a rule does not necessarily result in absolute
liability of defendant (

Edmonson v State of New York, supra; Bonacorsa v State of New York, Ct
Cl, May 31, 1994 [Claim No. 86522], Bell, J.; see, Holloway v State of New
York, AD2d, 728 NYS2d 567 [violation of a directive
while obtaining evidence later used at a disciplinary hearing does not give rise
to a viable claim for money damages]). In some circumstances, reversal of the
disciplinary determination and expungement of all references to the matter from
an inmate's record are a sufficient remedy (see, Edmonson v State of New
York, supra, at 456). Monetary damages may be appropriate, however, where
defendant's violations of its rules are so egregious as to implicate due process
considerations (see, Arteaga v State of New York, supra, at
221)[3] or, more commonly, where the proof
reveals a breach of a rule that involves a mere ministerial act (see, e.g.,
Gayle v State of New York, 135 Misc 2d 570). Examples of ministerial acts
include failing to serve a misbehavior report (Best v State of New York,
Ct Cl, Oct. 25, 1993 [Claim No. 86570-A], Bell, J.), incorrectly calculating the
period of restrictive confinement (Perez v State of New York, Ct Cl, Feb.
14, 2001 [Claim No. 99839], Sise, J.), omitting to release an inmate from
restrictive custody in a timely fashion (Minieri v State of New York, 204
AD2d 982), or neglecting to commence a timely hearing (Plair v State of New
York, Ct Cl, Sept. 28, 2000 [Claim No. 95693], Mignano,
J.).

Claimant alleges that defendant committed compensable errors at the hearing by
failing to call witnesses requested by him and by the off-the-record actions of
the hearing officer. The court will first address the failure to call
witnesses. The pertinent rule provides that an inmate may call witnesses
"provided their testimony is material, is not redundant, and doing so does not
jeopardize institutional safety or correctional goals" (7 NYCRR 254.5[a]).
When a request for witnesses is denied, a written reason for the denial must be
provided (

id). Claimant requested four witnesses. The hearing officer determined
that the testimony of three of the witnesses was not material and that the
other's testimony would be redundant (Claimant's Exhibit 2). The reasons for
denying the request for witnesses were provided in writing (id).
Defendant thus complied with the germane rule regarding the request for
witnesses. The decision not to produce the inmates may have been ill-advised
and, indeed, perhaps such reason provided a ground for the administrative
reversal. It is not the role of this court, however, to second-guess or review
a determination by a hearing officer regarding witnesses when the officer
followed the relevant rule. Indeed, the court recently held that "[i]f a
hearing officer relies upon one of the grounds set forth in the rule, the
officer's decision would be covered by absolute immunity from any claims for
monetary compensation" (Moreno v State of New York, Ct Cl, Apr. 10, 2001
[Claim No. 100335], Bell, J.).

Claimant further premises his request for a monetary recovery upon the hearing
officer's conduct in eliciting information regarding the incident from Sergeant
LaPier during an adjournment of the hearing. The rules of the Department
provide that a person shall not be appointed a hearing officer if, among other
things, the person has investigated the incident (7 NYCRR 254.1). There is no
evidence before the court indicating that at the time Knapp was appointed a
hearing officer he had conducted any independent investigation of the incident.
Review of the transcript of the hearing (Claimant's Exhibit 1) reflects that
during the hearing claimant requested Knapp to ascertain certain information for
him and Knapp agreed to do so. Such requests by claimant reflect an
acknowledgment of a relative informality of the proceedings and an approval by
claimant of Knapp seeking additional information during an adjournment of the
hearing. Claimant alleges, however, that Knapp elicited information beyond what
he had requested. Knapp testified that he believed he was obtaining information
consistent with claimant's request. Knapp's interpretation of claimant's
request, even if erroneous, does not constitute a mere ministerial act devoid of
any discretion. Moreover, the proof before the court fails to reflect a denial
of due process. Therefore, the court is not convinced that monetary
compensation is appropriate.

The court is not condoning the conduct during the hearing. Indeed, one
reasonable interpretation of the evidence is that Knapp's actions were beyond
the scope of claimant's request and perhaps such reason was a basis for the
administrative reversal. The court is not, however, persuaded by the proof
presented that a viable claim for monetary compensation has been
established.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed
to enter judgment accordingly.

November 13,
2001Plattsburgh, New York

HON. JOHN L. BELLJudge of the Court of
Claims

[1] All quotes are from the court's trial notes
unless otherwise indicated.

[2] Interestingly, the underlying requirements
to establish a violation of procedural due process under the United States
Constitution have changed in recent years with respect to inmates placed in
punitive segregation (see, Sandin v Connor, 515 US 472; cf., Hewitt v
Helms, 459 US 460).

[3] Showing that defendant violated its own
procedural rules in a disciplinary hearing does not compel the conclusion that a
violation of due process has occurred (see, e.g., Sandin v Connor, 515 US
472; Frazier v Coughlin, 81 F3d 313, 317).